Stutsman v. Stutsman

GRIFFIN, J.

On June 20, 1946, plaintiff and respondent wife filed a complaint against defendant and appellant husband for separate maintenance. He was ordered to show cause, on July 2,1946, why he should not pay for maintenance and support of two minor children, attorneys’ fees, and costs. The order was issued on June 20, 1946, and served on defendant. He filed a demurrer on June 28, 1946, together with an affidavit of merits and demand for change of venue to Los Angeles County, the place of his claimed residence. On July 2, 1946, an order was made, after hearing on the order to show cause, awarding support money for the children and for attorney’s fees and costs. On July 9, 1946, an order, duly motioned, was made restraining defendant from removing the minor children from the possession of plaintiff and restraining the issuance of any order on motion for change of venue until certain orders made respecting costs, attorney’s fees, and maintenance had been complied with. On July 22, 1946, after hearing, the motion for change of venue was denied. The demurrer to the complaint was sustained. Defendant appeals from the order of July 2, 1946, awarding attorneys’ fees, maintenance and court costs, from the order of July 9, 1946, restraining him from removing the children, and from the order of July 22, 1946, denying his motion for change of venue. On August 27, 1946, the court ordered, after motion

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duly made, that defendant pay plaintiff $250 as costs and attorneys’ fees on appeal. On August 29, 1946, defendant filed a separate notice of appeal from this order.

It is now argued by defendant and appellant, in his opening brief, that the motion for change of venue should have been heard and determined before any other matter and before the demurrer was considered; that the order to show cause was void and the court was without jurisdiction to hear and determine the application for support money, attorneys’ fees and costs; and that the motion for change of venue should have been granted.

Section 395 of the Code of Civil Procedure provides, with certain exceptions, that the proper court for the trial of an action is in the county in which the defendant resides. Section 396b provides that if the court in which the action is filed has jurisdiction of the subject matter, the action may be, notwithstanding it is not the proper court, tried in the court where it was commenced, unless the defendant, at the time he answers or demurs, files an affidavit of merits and notice of motion to transfer the action to the proper court. The court, if it determines that it was not brought